In Mayor and Burgesses of the London Borough of Southwark v Onayomake – Butterworths Law Direct 19.10.07 the Defendant’s solicitor failed to attend the Case Management Conference. The district judge struck out the defence and counterclaim although there were legitimate reasons for the solicitor’s failure to attend which, when conveyed to the judge, led him to believe such striking out was disproportionate. However, he maintained the strike out on the grounds that the solicitor had failed to serve the pre-trial checklist.

It was held that if a failure to comply with case management directions was solely the fault of the party's legal representatives, it did not follow that the court had to accede to the party's application for relief from the sanctions imposed, pursuant to the CPR r 3.9(1). However, in this case the strike out was disproportionate given the explanation for the failure to attend the CMC and failure to file a pre-trial checklist alone would not give rise to grounds to strike out. Accordingly, applying CPR 3.9(1) the judge had been plainly wrong to deny the Defendant the relief sought.